Employment Law: Military reservists guaranteed re-employment, benefits

Bob Lawson Jr. practices labor and employment law representing management and is a partner with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.

Due to the ongoing issues in the Middle East, our nation's military has been in the forefront of the news. As a result, many military reservists have been called up to active duty. With other potential military operations on the horizon, more reservists may be called in the future. To this end, employers and employees should be aware there are employment statutes which affect those who serve in the military.

Missouri has a statute which prevents any employer from discriminating against any member of the Missouri National Guard or Armed Forces of the United States because of their military membership.

Specifically, no employer can discharge any person because he or she is a member of the military or dissuade any person from enlistment in the military by threat of his or her employment. The federal Uniform Services Employment and Reemployment Rights Act also covers members of the National Guard, the reserves and employees who wish to enlist in active duty in any of the armed services.

The act essentially addresses the three main areas of an individual's employment relationship: re-employment of the veteran, antidiscrimination and benefit entitlements. To be eligible for re-employment the returning service member must have originally provided advance notice of the need for a military leave, the cumulative amount of leave requested must be no longer than five years and the employee must have received an honorable discharge.

An eligible returning worker, who also timely notifies his or her employer, is to be re-employed in the same or similar position he would have attained had he stayed with the employer rather than taking military leave. If the worker is no longer qualified for such position, the employer must make an effort to qualify that person.

Even if the employee becomes disabled during his or her military service, the employer must make reasonable efforts to re-employ that individual unless it would impose an undue hardship on the employer, or the employee is no longer qualified to perform the work due to the disability. However, employees on military leave are subject to lay-offs to the same extent as non-military employees.

Another key aspect of this federal act is the antidiscrimination protection. An employer cannot discriminate against employees because of their military leave. This pertains not only to the initial hiring, but also to the retention and promotion of the individual both before and after military leave of absence.

Finally, the act provides certain protection as to the veteran's seniority, salary and employment benefits. Re-employed service members are entitled to seniority and all rights based on seniority, including benefits, that they would have obtained with reasonable certainty had the individual remained continually employed. If the benefit is not seniority-based, the veteran must be entitled to participate in any benefits which are available to other employees on non-military leaves of absence.

Upon re-employment, the veteran is entitled to any salary increases based upon seniority that the individual would have achieved had he or she maintained continuous employment with the employer.

The re-employment act also addresses pension benefits, health plans and vacation for those on military leave. The veteran is entitled to accrue vacation at work as if he never went on military leave. With respect to pension benefits, employers generally must treat re-employed service members as not having incurred a break in service with the employer. The re-employed service member is entitled to any accrued benefits from employee contributions only to the extent that the employee makes up his contributions upon re-employment.

Finally, the re-employment act also provides returning employees with health plan protections. Essentially, employees on military leave are entitled to COBRA-like health care benefits. If a service member's health care coverage would terminate because of an absence caused by military service, the employee may elect to continue the health plan coverage for up to 18 months after the absence begins or for the period of service, whichever is shorter. Similar protection is not provided to employees who take military leave of less than 31 days.

Additionally, if the individual's health care plan terminates due to the military leave, the health care plan cannot impose an exclusion or waiting period upon the re-employed veteran that would not have otherwise been imposed had the veteran been continuously employed during the time of military service. The act's provisions apply to the returning service member as well as to his or her dependents.